Jump to content
The Wifcon Forums and Blogs

G Wiz

Part 8.4 vs Part 15 revising Technical Quotations (TQ)

Recommended Posts

Good morning , I ran into a roadblock a week ago regarding the procedures you need to follow when addressing TQ's that are lacking. For the sake of this post I issued an RFQ against Schedule 70's. Two responses were received. After review of both TQ's we found both had missing aspects. We gave them initial ratings. So we held a conference call, in which I called 'Exchanges of Information', with each vendor to address what was missing. Both vendors were able to fix their TQ's. We then gave them a final rating. Award was based on the final ratings. Counsel advised me that no matter what you call it we still entered into discussions therefore Part 15 procedures must apply from there on out.

I understand if it walks like a duck and smells like a duck; it's a duck. I get that, but how do we stay out of Part 15 if a situation arises when TQ's are lacking? In the above example none of the language I used throughout the process was reminiscent of Part 15. What gave counsel heartburn was I asked for a 'Price Reduction' from only one vendor. I have read Case Law that allows CO's to go to only one vendor for Price Reductions, but because we apparently opened discussion I had to extend that to both vendors. Is the GAO truly expecting TQ's to be perfect without any revisions?? If revisions are needed then we move into Part 15? That seems unreasonable.

Thanks

Share this post


Link to post
Share on other sites

I assume that the successor vendor was the one from which you requested the price reduction. I assume the vendor's initial price was not so high as to preclude award in its own right. If both my assumptions are correct, I don't understand what your rationale is for treating the two vendors differently.

Share this post


Link to post
Share on other sites

Yes, the apparent successful vendor was the one I requested the price reduction. They were already the higher rated, lowest priced. I went after additional reductions. By invoking Part 15, that opens up other requirements not required by Part 8.4, i.e Debriefings, etc. etc. Part 8.4 is written with streamlined ordering procedures to increase efficiencies. If we're required to include Part 15 just because a Technical Quote needs fixed, It defeats that purpose. That's what I'm trying to get to the bottom of. How do I fix Technical Quotes while staying in Part 8.4? Further, if I've graduated to Part 15 does that mean Parts 5 and 6 now apply?

Share this post


Link to post
Share on other sites

Counsel advised me that no matter what you call it we still entered into discussions therefore Part 15 procedures must apply from there on out.

If your counsel advised you that any exchange that results in the submission of a revised quote necessarily constitutes "discussions" and requires the use of FAR part 15 procedures from that point forward, they are wrong. See Intelligent Decisions, Inc., B-274626; B-274626.2, Dec. 23, 1996. From the decision:

DISCUSSIONS

Since we have concluded that this acquisition was an FSS buy, IDI's allegations that the agency held improper discussions with WIN and impermissibly allowed WIN to “revise its price and technical solution” are without merit.

Quotations in response to an RFQ that reflect FSS contract prices are not offers that can be accepted by the government. Rather, they are informational responses that indicate the products on the FSS that vendors would propose to meet the agency's requirements and the prices of those products and related services that the government may use as the basis for issuing a delivery order to an FSS contractor. Crown Furniture Mfg. Inc., B-225575, May 1, 1987, 87-1 CPD ¶456. Thus, vendors responding to an agency's request for quotations for products on an FSS do not submit offers that define exactly what the vendor would supply at what price; that already is defined by their FSS contracts. Since such requests are merely intended to identify suitable products available on the FSS, the agency can seek additional information from vendors after the submission of quotations. Monroe Sys. for Business, Inc., B-271136, May 17, 1996, 96-1 CPD ¶242; Hugo Heyn Co., B-255329, Feb. 15, 1994, 94-1 CPD ¶113. Therefore, to the extent the agency needed clarification of whether WIN's quotation included, for example, the cost to provide the Windows 3.1 license, the agency properly could contact WIN and obtain the information it required. We think DOJ's requests for additional information were proper in the context of an FSS buy and we have no basis to object to the agency's actions.

Share this post


Link to post
Share on other sites

G Wiz, you may also want to take a look at Kardex Remstar, LLC, B-409030, Jan. 17, 2014. Communications, even communications conducted under a FSS buy, must not be fundamentally unfair, which was the point of my earlier post. Don’t take your attorney’s advice too literally. The GAO looks to the standards in FAR Part 15 for guidance in determining whether exchanges under a FSS buy were fair and equitable.

Discussions should not be conducted in a manner that favors one offeror over another. You may have some rationale as to why you requested a price reduction from one vendor but not the other at a time when neither quote was awardable, but, unless I’ve missed it, you haven’t provided that rationale. The vendor from which you sought price reductions appears to have quoted a LOWER price than the disappointed vendor at the time you sought the price reduction, so your facts seem distinguishable from those in Bannum, Inc., B-409831, July 30, 2014. There may be a line of cases that will show that my concern is misplaced, but off the top of my head, I’m concerned your discussions may potentially have been unequal.

Nothing in FAR 8.405-4 prevented you from seeking price reductions from both vendors. I could see citing to Optimus Corp., B-400777, Jan. 26, 2009, and trying to argue that, because seeking discounts doesn’t trigger a duty to have MEANINGFUL discussions, then a disappointed offeror shouldn’t be able to argue that failing to seek discounts from the disappointed vendor amounts to UNEQUAL discussions. In other words, if seeking discounts doesn’t amount to discussions, how could there have been unequal discussions? Even if the GAO buys that, I doubt the lack of equal treatment has to be grounded in DISCUSSIONS. The protest could simply be that the agency treated similarly situated vendors differently without justification to the prejudice of the disappointed vendor.

In fact, if the order was greater than the SAT, I could see a disappointed vendor arguing that FAR 8.405-4 should be read to require the agency to seek price reductions from more than just one vendor when that request is made prior to the identification of the successful quote. You write, “Both vendors were able to fix their TQs.” As such, while I don’t understand why you didn’t seek price reductions from all vendors at the same time you sought them from one, I REALLY don’t understand why you didn’t seek price reductions from the disappointed vendor when it became technically acceptable. Doing so would not have amounted to reopening discussions.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.

×